Iowa Freedom of Information Council, In re

• Decision Date: 27 January 1984
• Docket Number: No. 83-1573,83-1573
• Citation: 724 F.2d 658
• Parties: 10 Media L. Rep. 1120 In re the IOWA FREEDOM OF INFORMATION COUNCIL and Des Moines Register and Tribune Company, Petitioners.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 658

724 F.2d 658

10 Media L. Rep. 1120

In re the IOWA FREEDOM OF INFORMATION COUNCIL and Des Moines

Register and Tribune Company, Petitioners.

No. 83-1573.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 11, 1983.

Decided Dec. 30, 1983.

As Amended Jan. 27, 1984.

Lawrence R. Elleman, Cincinnati, Ohio, for respondents The Honorable Edward J. McManus, and The Procter & Gamble Co.; Timothy White, Cedar Rapids, Iowa, Dinsmore & Shohl, Cynthia Nitz Ris, Mark C. Bissinger, Cincinnati, Ohio, of counsel.

Michael A. Giudicessi, Associate Gen. Counsel and Asst. Secretary, Des Moines Register and Tribune Co., Des Moines, Iowa, for petitioners.

Before ROSS, ARNOLD and JOHN R. GIBSON, Circuit Judges.

ARNOLD, Circuit Judge.

Petitioners, representatives of the press in Iowa, ask this Court to issue a writ of mandamus directing the District Court ¹ to release all portions of transcript under seal in a contempt hearing involving Tom Riley, a lawyer. The District Court closed part of the hearing to the press and public because testimony with respect to valuable trade secrets was to be given. It later opened all but a small portion of the transcript. We agree that the portion of the transcript still unrevealed contains trade secrets, and that it was necessary to deny release of this portion of the transcript in order to protect property rights in these secrets. We therefore deny the petition for mandamus. We also make certain observations about the procedure followed by the District Court in this case, for the future guidance of the district courts in this Circuit.

I.

The contempt hearing against Riley arose out of an action styled Kehm v. Procter & Gamble Manufacturing Co., ² in which Riley represented Michael Kehm in an action for wrongful death against Procter & Gamble (P & G). Kehm alleged that his wife died from toxic-shock syndrome caused by Rely tampons, a P & G product. During discovery, Riley signed a non-disclosure agreement promising to keep confidential certain information he had acquired about the P & G companies, part of which P & G claimed involved trade secrets. On August 12, 1981, the District Court entered a protective order based on this agreement.

After the trial in the wrongful-death case Riley sold certain documents to over 30 different attorneys involved in toxic-shock-syndrome litigation against P & G, including plaintiff's exhibits 22 and 27, the two documents that the District Court eventually found to contain trade secrets. ³ P & G then initiated a contempt proceeding against Riley, claiming violations of the protective order. On February 25, 1983, the District Court ordered Riley to show cause why he should not be held in contempt. The contempt proceeding began on April 7, 1983, and lasted for four days. On April 8, P & G requested that the courtroom be closed to the public and press because part of the testimony on that day would involve trade secrets. The Court then ordered that the session be closed and directed the marshal to exclude all non-parties. At this point, a reporter tried to object to the closure, but the Court refused to hear her objection. The April 8 session was then conducted in camera, after which the court remained in recess until April 14.

On the morning of April 14, petitioners filed a motion for the release of the April 8 transcript, which the Court took under advisement. During the April 14 proceedings, P & G renewed its motion for closure. An attorney present for the media objected and was allowed to argue his objections. He asked that an in camera hearing be held to determine whether the documents in question were trade secrets and that he be allowed to attend the hearing and to cross-examine P & G witnesses. The lawyer promised that he would not reveal to anyone what occurred at the in camera hearing, if the Court, at the conclusion of the hearing, decided that trade secrets were involved and that it was necessary to close the hearing to protect the secrets. The Court denied the request, stating that it had not yet decided whether trade secrets were involved but would release the transcript if it determined that they were not. Following further interchange, the media attorney asked the Court to articulate the reasons for closure, to which the Court replied that the testimony involved trade secrets. Shortly thereafter, the Court ordered the courtroom cleared of all non-parties.

On April 29, 1983, petitioners filed a petition for mandamus with this Court. We ordered that the petition be held in abeyance until the District Court ruled on the petitioner's motion to release the April 8 transcript. On June 28, 1983, the District Court released all exhibits from the protective order except exhibits 22 and 27 and all transcript testimony except that relating to exhibits 22 and 27, ruling that those two exhibits involved trade secrets. With the entry of this order, we are now in a position to rule on the petition for a writ of mandamus.

II.

Petitioners argue that the District Court's procedure in closing the contempt hearing was deficient in several respects most notably, because the Court failed to give the press adequate notice of and the opportunity to object to the motion for closure and failed to make adequate findings that trade secrets were involved before continuing with the main contempt hearing. We find some merit in these objections; however, because the contempt hearing has ended, there is no purpose in issuing a writ of mandamus instructing the Court in the procedures that should have been followed. Nonetheless, we believe it appropriate in light of the significant First Amendment interest in public access to trials to indicate what procedures a court should follow in ruling on a motion for closure, and in what respects the District Court here failed to follow such procedures.

In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the Supreme Court recognized the First Amendment right of the public to attend criminal trials. In neither case did the Court address the question whether the First Amendment also applies to contempt hearings, proceedings which are partly civil, partly criminal in nature, but the Court's reasoning for finding a First Amendment right of public access to criminal trials clearly supports such an application.

In Globe Newspaper Co. the Court stated that two features of criminal trials explain why a right to access should be afforded protection by the First Amendment. First, the criminal trial has historically been open to the public. 457 U.S. at 605, 102 S.Ct. at 2619. Second, such access can enhance the quality and safeguard the integrity of the fact-finding process and foster an appearance of fairness. Id. at 606, 102 S.Ct. at 2620. Without going into historical analysis, this Court notes, as was noted by a plurality opinion of Chief Justice Burger, that "historically both civil and criminal trials have been presumptively open." Richmond Newspapers, Inc., supra, 448 U.S. at 580 n. 17, 100 S.Ct. at 2829 n. 17. In addition, the presence of the public and press at civil proceedings will enhance and safeguard the quality of the fact-finding process, just as it does at criminal trials. Arguably, the public interest in securing the integrity of the fact-finding process is greater in the criminal context than the civil context, since the condemnation of the state is involved in the former but not the latter, but it is nonetheless true that the public has a great interest in the fairness of civil proceedings. Hence, we conclude that the protection of the First Amendment extends to proceedings for contempt, a hybrid containing both civil and criminal characteristics.

We now consider what procedures the First Amendment requires a court to follow when a motion for closure of hearing is made. Here, the District Court declined to hear objections that a reporter wished to voice, informing her instead that the hearing would be closed and that it would consider her objections at some later time. We think this action was too precipitate. Whenever an objection to closure is made, the Court must allow the objecting parties a reasonable opportunity to state their objections. See United States v. Brooklier, 685 F.2d 1162, 1168 (9th Cir.1982). This opportunity need not take the form of an evidentiary hearing or encompass extended legal argument. See Gannett Co. v. DePasquale, 443 U.S. 368, 445-46, 99 S.Ct. 2898, 2939, 61 L.Ed.2d 608 (1979) (Blackmun, J., concurring in part and dissenting in part, joined by three other Justices). But where a member of the media or the public objects to a request by a party that a hearing be closed, or to a proposal by the court on its own motion that a hearing be closed, the court must give him or her a reasonable opportunity to state the objection. In the present case, however, this error was harmless. We hold in Part III of this opinion that trade secrets were in fact involved, and that substantial damage to P & G's property rights in these secrets would have occurred had the hearing not been closed. We also hold that no reasonable alternative existed to closure, sufficient to protect these property rights. In other words, even if the District Court had heard the reporter out, as we believe it should have, it would still have been within its rights in deciding to close the hearing, at least in part, so the failure to give more extended consideration to the reporter's attempt to object does not entitle petitioners to any relief in the present procedural context.

Petitioners also argue that it was error to close the hearing without first making a determination that trade secrets were involved, and that P & G would be irreparably damaged if the hearing were not closed. We held in In re United States ex rel. Pulitzer Publishing Co., 635 F.2d 676 (8th Cir.1980)...